Stuart P. Green

89 Texas L. Rev. See Also 61

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Blackmail criminalizes the threat to do something that would not be criminal if one actually did it.  It is seemingly paradoxical that it should be a crime to make certain kinds of threats, even though the threatened acts are perfectly legal.  In Taking It to the Streets, Professor Green responds to Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory by Professor Paul Robinson et al.  Green finds that the authors ingeniously derive concrete scenarios from abstract theories, that they provide a concise summary of the various blackmail theories, and that their methodological techniques are exemplary.  Putting aside the authors’ achievement, Green focuses on the article’s shortcomings.  Green characterizes the authors’ article as attempting to solve the problem in a novel if unusual way: by asking a collection of laypersons what they think should count as blackmail.

Blackmail is not unique in criminal law.  Similar to fraud and false pretenses, blackmail is a form of theft in which the blackmailer attempts to obtain property from the victim without his valid consent, and uses a coercive, though otherwise lawful act, to do so.  However, blackmail is distinguished based on the subject matter of the threat.  Demands for money based on threats to do some kinds of acts (expose embarrassing information) but not others (file a lawsuit) are considered criminal.  Green asks, then, whether there is any principled way to distinguish between these two kinds of threats.

Robinson and his colleagues ask this question to ordinary people.  In doing so, they try to determine if the law is in harmony with the community’s sense of justice.  Green provides several contexts in which he thinks it is useful to have data concerning community views on particular offenses.  For example, “it is useful to know if people believe that a particular paradigmatic act is sufficiently blameworthy to justify criminal sanctions in the first place.”  He finds that the authors’ study offers valuable data as to these issues.

In addition to gathering data, the authors also wanted the scenarios to reflect a range of prominent theorists’ views about why the law is justified in treating blackmail as a crime.  Green considers this effort to translate abstract theory into concrete scenarios to be “the most impressive achievement of the article.”  Yet, he thinks the theorists cited were probably trying to formulate a critical theory to explain why the core cases of informational blackmail should be treated as a crime, and not to devise a theory that would accord with widely shared moral intuitions.  Nor is Green sure that this is a satisfactory way of testing which theory the public would favor.  Instead, he suggests it might be better to explain the leading theories and ask the public directly which they favor, rather than attempt to translate them into testable scenarios first.

Lastly, Green turns to the article’s taxonomy of state blackmail statutes.  He argues that one important factor the authors failed to include is the breadth of the range of threats criminalized.  That is, not only what the statutes require the blackmailer to demand but also what they require him to threaten.  Green finds it puzzling that the authors did not include this factor in their schema.